JOHN DAVID HARDIE V COMMISSIONER OF INLAND REVENUE HC AK CIV-2009-404-001785

JOHN DAVID HARDIE V COMMISSIONER OF INLAND REVENUE HC AK CIV-2009-404-001785 5 May 2010IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV-2009-404-001785UNDER the District Courts Act 1947 AND UNDER Part 10 of the High Court Rules AND UNDER The Tax Administration Act 1994 BETWEEN JOHN DAVID HARDIE Applicant AND COMMISSIONER OF INLAND REVENUE Respondent Counsel: Applicant in person C K Wood for the respondent Judgment: 5 May 2010JUDGMENT OF STEVENS JThis judgment was delivered by me on Wednesday, 5 May 2010 at 3pm pursuant to r 11.5 of the High Court Rules. Registrar/Deputy RegistrarSolicitors/Counsel: Crown Solicitor, PO Box 2213, Shortland Street, Auckland 1140 Copy to: J Hardie, PO Box 45 110, Te Atatu, Waitakere 0651Introduction[1] The application by Mr Hardie (the applicant) for leave to appeal against my judgment given on 19 March 2010 was set down for hearing before me on 23 April 2010. The circumstances of the allocation of the fixture and hearing are described in detail at [2] – [12] of the oral judgment given on that occasion. [2] The applicant has now filed an application dated 3 May 2010 pursuant to rr 7.40 and 7.49 of the High Court Rules (HCR) seeking an order "recalling/rescinding all the orders made by Stevens J in the above matter on Friday, 23 April 2010". Eight grounds in support are referred to. [3] In this judgment, I deal separately with each of the bases for the application. Neither has any merit. There is no need to hear from counsel for the respondent. Further, there is no proper basis for the application to be referred to another Judge as suggested by the applicant at paragraph 2(g).Rule 7.40 – failure to attend[4] The application for reinstatement under r 7.40 of the HCR cannot succeed. First, it is apparent from the document filed by the applicant referred to at [7] – [9] of the oral judgment of 23 April 2010 (the judgment) that the application for leave to appeal was "reluctantly withdrawn" by the applicant. This was confirmed in ground 1 referred to at [9]. Hence, it would have been a sufficient response for the Court to have simply dismissed the application for leave to appeal. [5] However, as is plain from the judgment from [20] onwards, the application for leave to appeal was considered on the merits on the basis of all the material before the Court, including material put forward in writing by the applicant. The application for leave to appeal was thereupon dismissed: see [31] – [33]. [6] Nothing that the applicant has put forward in his application dated 3 May 2010 provides a proper basis for the exercise of the discretions referred to in eitherr 7.40(2) of the HCR to recall the judgment, or in r 7.40(3) of the HCR to reinstate the application for leave to appeal. [7] The applicant will suffer no prejudice by the Court exercising the discretions in this manner. That is because, if the applicant wishes to take the matter further, he has the option of filing an application for leave to appeal in the Court of Appeal.Rule 7.49 – order may be varied[8] The applicant has also relied on r 7.49 of the HCR as a basis for advancing his application. That rule may be relied upon where a party is able to demonstrate (in relation to an interlocutory order) that the order is wrong. Assuming for present purposes that the order dismissing the application for leave is an interlocutory order, the applicant has not provided any factual or legal basis upon which he could demonstrate that the order was wrong. Indeed, most of the grounds in the application relate to procedural issues. [9] The applicant seems to have changed his mind about continuing with the appeal as he seeks to have "an appeal process continue anonymously". If this is a genuine expression of a desire to pursue the appeal further, the applicant could, if he so wishes, file an application for leave to appeal in the Court of Appeal. On the leave point, the High Court is now functus officio, that is, the role of this Court has come to an end.Result[10] The application for an order recalling or rescinding the orders made by me in the judgment given on 23 April 2010 is hereby dismissed. _________________________ Stevens J